Utah files ambitious lawsuit to take control of 18.5 million acres of federal public land

Gov. Spencer Cox speaks at a press conference announcing a lawsuit from the state seeking to take control of to 18.5 million acres of federally managed land in Utah. (Kyle
Dunphey/Utah News Dispatch) 

Utah is suing the federal government over how it manages public land in the state, again.

But unlike past legal challenges, which target specific national monuments or policies, the scope of the lawsuit filed with the U.S. Supreme Court recently is massive, questioning whether the Bureau of Land Management’s claim to 18.5 million acres of land — about 34 percent of the entire state — is legitimate.

State politicians call it “historic.” Environmental and public land advocacy groups say it’s a “land grab.” Regardless, the lawsuit has the potential to upend how the Bureau of Land Management operates in Utah and possibly the western U.S.

The lawsuit targets “unappropriated” public land. That doesn’t include Utah’s five national parks, or any of the state’s national monuments, national forests or recreation or wilderness areas, which represent about half of the federal public land in the state.

The other half, which is about 34 percent of the entire state, according to officials, is unappropriated land “that the U.S. government is simply holding on to, without properly reserving it for any designated purpose,” Attorney General Sean Reyes said.

That deprives Utah of its sovereignty, Reyes said, by holding land regardless of how it impacts residents or state business.

“Utah cannot manage, police or care for more than two-thirds of its own territory because it’s controlled by people who don’t live in Utah, who aren’t elected by Utah citizens and not responsive to our local needs,” Reyes said.

That means the state can’t impose taxes on that land, or impose eminent domain to build “critical infrastructure” like public roads or communication systems, Reyes said. Nor can the state exercise legislative authority over how to use the land.

The 90-plus-page complaint asks the U.S. Supreme Court whether it’s constitutional for the federal government to hold unappropriated land in the state indefinitely.

“This is a question we and many western states have had for decades,” Gov. Spencer Cox said, speaking to a room packed full of lawmakers, bureaucrats, county-level politicians and reporters. Reyes, as well as Senate President Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper, also spoke.

There are only a handful of entities allowed to petition directly to the U.S. Supreme Court, including states that have a dispute with the federal government. Even though it could be a more streamlined process than filing with a lower court, the process could still take years. And that’s assuming the high court agrees to hear the case.

If the Supreme Court declines to take up the case, Cox said the state will go back and file a complaint with a federal district court.

Whether it’s the Supreme Court or a lower district, the legal challenge will cost taxpayers money. The Legislature appropriated about $20 million to fight the legal challenge, Reyes said, though he believes it won’t cost nearly that much.

“What we’ve spent currently or plan to spend is, I don’t have an exact number, but it’s a fraction,” Reyes said, telling reporters the state will save money by filing the lawsuit with the Supreme Court because it won’t have to litigate in federal district courts.

In an email, University of Utah law professor John Ruple agreed with some of the governor’s sentiment, telling Utah News Dispatch there is room for improvement when it comes to how federal land is managed.

“However, the U.S. Constitution is clear that Congress, not the individual states, makes decisions about our federal public lands,” said Ruple, a research professor of law at the university’s S.J. Quinney College of Law, and director of the Wallace Stegner Center for Land, Resources and the Environment’s Law and Policy Program.

To rule in Utah’s favor, Ruple said, the Supreme Court would have to reinterpret longstanding constitutional provisions, upsetting “150 years of settled Supreme Court law and destabilizing land ownership throughout the West.”

“That’s a big lift. I can’t help but wonder whether a less adversarial approach would have been more effective,” he said.

What if Utah wins?

If Utah’s lawsuit is successful, setting forth a process where 18.5 million acres is placed under state control, it would unravel the current, decades-old structure of federal land management.

But it’s something state officials have anticipated for years, passing a bill in 2017 that creates the prospective Utah Department of Land Management, which would essentially become Utah’s version of the BLM.

Much of that unappropriated land is offered up as parcels for grazing, oil and gas production, mining or recreation — those leases would instead be managed by the Department of Land Management.

Redge Johnson, director of the state’s Public Lands Policy Coordinating Office, said Utah would honor all existing leases, but instead of the BLM, lease holders would meet with state employees. Johnson, acknowledging that it’s very much still a hypothetical scenario, said the state would likely hire many BLM employees.

“They’re great people; we have a lot of good people at the local level that we work with. It’s the decisions that come out of (Washington) D.C. that we find problematic,” he said.

Other federal entities, like the U.S. Fish and Wildlife Service, which doesn’t necessarily own unappropriated land but does work on it, would likely be able to operate as it did previously.

The state has long had grievances with the federal government’s hold on land. It has filed lawsuits looking to repeal the Biden administration’s re-designation of Bears Ears and Grand Staircase-Escalante national monuments, a travel plan in Grand County that closed a number of rugged dirt roads near wilderness areas, and a recent rule allowing parcels of Bureau of Land Management land to be leased for conservation.

Those policies were all cited by officials as examples of federal overreach.

“For the entire time that we’ve existed as a state, Utah’s public lands have been a treasured heritage for all of us. For many years, decades even, the question of how to best manage Utah’s lands has been at the forefront of our state’s critical issues,” Cox said. “The crazy thing is that all this time, we have not had control of nearly 70 percent of our land. I want you to think about that for just a second. Utah does not have the ability to manage over two-thirds of our state.”

A number of environmental groups responded to the announcement, calling Utah’s lawsuit an attempted land grab and accusing the state of wasting taxpayer money, while threatening some of the state’s most iconic landscapes.

The Southern Utah Wilderness Alliance, a litigious nonprofit that has previously intervened in several lawsuits in opposition to Utah, called the lawsuit announcement another example of Utah being “the most anti-public lands state in the country.”

“Utahns and visitors travel to our state to experience stunning red rock canyons, spires and mesas — public lands that are owned by all Americans and managed on their behalf by the federal government and its expert agencies,” said the group’s legal director, Steve Bloch. “All of that is at risk with Utah’s saber-rattling and insistence that many of these remarkable landscapes are instead ‘state lands’ that should be developed and ultimately destroyed by shortsighted state politicians.”

The Center for Western Priorities, a public lands advocacy group, said Utah’s legal argument was likely to fail, telling Utah News Dispatch it “isn’t worth the paper it’s printed on.”

“One hundred and thirty years ago, the people of Utah agreed to ‘forever disclaim all right and title’ to national public lands when Utah became a state. What part of ‘forever’ isn’t clear to you, governor? The property clause of the Constitution gives Congress, and only Congress, authority to transfer or dispose of federal lands. That’s the beginning, middle, and end of this lawsuit,” said the group’s deputy director, Aaron Weiss, who urged the governor and other state leaders to abandon the suit before they “waste millions of taxpayer dollars enriching out-of-state lawyers on this pointless lawsuit.”

And the Wilderness Society said the lawsuit was another example of Utah trying to undermine federal land management, pointing to the state’s other lawsuits.

In a statement, the group’s senior legal director, Alison Flint, called the lawsuit “a brazen and undemocratic attempt to force the handover of millions of acres of American’s public lands to the state — and ultimately to private companies planning to develop them.”

“The courts should reject these cynical, outrageous attempts to undermine and take control of America’s public lands,” Flint said.

This story was originally published by Utah News Dispatch. It is reprinted here under Creative Commons License CC BY-NC-ND 4.0.